New Zealand Case Law: Decisions & Judgments

Topic

Service dispensation

Legal area

Court

24 Mar 2022

MASON v STOCKER [2022] NZHC 564

Citation

[2022] NZHC 564
Court

High Court

Because the Trusts Act 2019 transitional provision (sch 1 cl 11) required completion of divesting and vesting as if the new Act had not commenced, and because a trustee named on title was incapacitated and another trustee had been validly removed for incapacity, the Court had jurisdiction under s 52 Trustee Act 1956 to make a vesting order; further, leave to use an originating application was justified under r 19.5 and service was properly dispensed with, therefore the property was vested in the current trustees to enable winding up of the Trust.
21 Oct 2021

TE KAHUNGUNU O OTEPOTI TRUST v PITMAN [2021] NZHC 2827

Citation

[2021] NZHC 2827
Court

High Court

Medical evidence established that Bella and Maera lack capacity under r 4.30; affidavits showed the proposed guardians satisfied the r 4.35(2)(b) criteria; accordingly the Court appointed the daughters as litigation guardians and dispensed with service under r 4.36(1) because service would cause distress; the Court also corrected the intituling error.
26 Oct 2020

The G J STERN FAMILY TRUST [2020] NZHC 2806

Citation

[2020] NZHC 2806
Court

High Court

Because the application concerned routine administrative steps, the applicants had made reasonable inquiries, and affidavit evidence established that the retired trustee lacked capacity to execute transfer documents, the Court permitted the originating application under s 52 and made the vesting order to register the properties in the names of the remaining trustees and Apogee Trustees Limited.
8 May 2020

RE JAMIESON [2020] NZHC 942.

Citation

[2020] NZHC 942
Court

High Court

Because Gretta lacked capacity and the enduring power could not operate for her trustee-held share, and because she had been replaced as trustee under s43 with beneficiary consents in place, the Court properly dispensed with a litigation guardian and service and granted a vesting order under s52 to vest the Estate's half-share in the named trustees to enable the sale while preserving Gretta's life interest.
25 Feb 2020

RE THE 899 TRUST AND THE A B MITCHELL NO 3 FAMILY TRUST [2020] NZHC 260

Citation

[2020] NZHC 260
Court

High Court

Permission was granted to commence by originating application and service was dispensed with because beneficiaries consented and medical evidence established Brooke (Snr) lacked capacity so service would serve no useful purpose; accordingly the Court vested the trusts' realty in the continuing trustees to give effect to valid trustee removals under the Trustee Act 1956 and the Court's inherent jurisdiction.
18 Dec 2019

JONES v JONES [2019] NZHC 3402

Citation

[2019] NZHC 3402
Court

High Court

Where a trustee is medically established to lack the capacity to manage themselves and trust property, the Court will exercise its inherent jurisdiction to remove that trustee and may make a vesting order under s 52 of the Trustee Act to vest trust property in the continuing trustees; the Court may dispense with appointment of a litigation guardian and with service where beneficiaries' rights are unaffected.
22 Aug 2019

Application (Estate of Ellett) for order discharging executor [2019] NZHC 2013

Citation

[2019] NZHC 2013
Court

High Court

Because one executor was deceased and the remaining executor sought to be discharged due to serious medical reasons, and because the deceased's codicil endorsed appointment of Wynyard Wood partners together with consent from the majority of interested parties, the Court exercised its powers under Administration Act 1969 s21 and High Court Rules r19.5 to discharge Noel Johnston and appoint Penny Jones as administrator, dispensing with further service.
14 May 2019

CURRIE v WILLIS [2019] NZHC 1044

Citation

[2019] NZHC 1044
Court

High Court

On the medical evidence the second respondent was incapacitated and unable to discharge trustee duties; the Court therefore exercised its inherent jurisdiction to remove her as trustee and, pursuant to s 52(1)(b)(i) Trustee Act 1956, made vesting orders in favour of the continuing trustees; service and representation were properly dispensed with given incapacity and consent of remaining trustees and beneficiaries.
28 Mar 2019

NEWMAN v NEWMAN [2019] NZHC 622

Citation

[2019] NZHC 622
Court

High Court

Because the trustee (John Samuel Newman) lacked mental capacity and could not validly resign or transfer title by enduring power of attorney, and because serving him would serve no useful purpose, the Court permitted an originating application determined on the papers, dispensed with service, removed him as trustee and vested title and other trust assets in the continuing trustees.
23 Nov 2018

HATWELL v HATWELL [2018] NZHC 3064

Citation

[2018] NZHC 3064
Court

High Court

Because the former trustee was demonstrably incapacitated within the meaning of the Act, final beneficiaries consented, an independent trustee remained to protect interests, and the incapacity prevented execution of transfer documents, the Court had jurisdiction under s 52(1)(b)(i) Trustee Act 1956 and was justified in dispensing with service and making vesting orders to record the current trustees as registered proprietors; the Registrar-General was authorised to record the transfers and costs were payable from trust assets.